Snooping and Spying Spouses

It’s a horrible feeling when you “know” in your gut that your spouse is cheating, but if you’re not careful snooping may land you in a great deal of legal trouble. A 2012 Wall Street Journal article reports several instances of spouses who were convicted of stalking, harassment, invasion of privacy, and violations of the federal Wiretap Act for going too far. In addition to criminal charges, the even greater risk is civil penalties. There are several instances in which a spouse was ordered to pay upward of $20,000 in damages for illegally accessing their spouse’s electronic communications.

Even your spouse has a legal right to privacy. Federal wiretapping laws protect personal communications, as do many state laws, from unauthorized access. In this age of technology snooping has many forms from reading email messages, reading text messages, recording conversations, using hidden cameras, accessing Facebook accounts, utilizing “find my iPhone” features to track movement, to GPS tracking. In 2012, the American Academy of Matrimonial Lawyers reported, 92% of divorce attorneys have seen a rise in the use of information obtained from smartphones, particularly test messages, as evidence in divorce proceedings. As has been declared – “Divorce: There’s an App for that.” Assuming you dig something up, however, it may not necessarily be admissible in court.



Judges tend to frown upon parties who attempt do-it-yourself unearthing of evidence. There are many evidentiary issues that could prevent the evidence from being considered by the court, including authentication, hearsay, and fruit of the poisonous tree. Once a case is filed in the Family Court, however, your attorney will have the right to obtain your spouse’s phone records, emails, Facebook posts, etc. through a formal (and legal) process called “discovery.’ A licensed private investigator can also (legally) obtain the evidence needed to prove your case in court. 



Bottom line: If it feels like you are invading your spouse’s privacy, you are probably obtaining the information illegally. The risks likely outweigh the benefit. You will be better served by hiring an attorney to guide you through the legal process. Also, it’s important not to lose yourself in the course of a divorce –

You know who and what your [spouse] is, so the question is who you are and what has this marriage done to you. You know that being an electronic parole officer is not going to make your [spouse] faithful and reliable. You say [s]he has put your health at risk and your marriage is a sham. So the real question is not whether your snooping is justified, but when you are going to decide to get out.

(Emily Yoffe, Ethics of Spying on Your Spouse, Slate.com, October 23, 2012.)

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Protecting the Best Interests of an Incapacitated Adult – When, Where, What, Who, Why, and How

WHAT:  A Guardian is appointed to manage the personal and medical care of an incapacitated person (“ward”).  Whereas, a Conservator is appointed to manage the ward’s finances.  A Guardian is responsible for ensuring the ward has a clean, safe, comfortable, and appropriate home and for making sure the ward receives appropriate medical and health care.  Guardians should make annual reports to the Probate Court regarding the condition of the ward.  Conservators are responsible for managing and protecting the ward’s property and assets and will be required to periodically file a report with the court including receipts and inventory of the ward’s estate.   Conservators may also be required to pay a bond.  It is also possible for the court to limit the scope of an appointment; for example, for a limited duration or even limited power if the ward is able to make some, but not all, of their own decisions.  

WHY:  The threshold question is always whether or not the person alleged to need a Guardian and/ or Conservator actually lacks sufficient capacity to care for him- or herself and to manage his or her own affairs.  Incapacity may be a result of mental illness, physical illness, injury, age, or the abuse of alcohol or drugs.

WHEN:  The Court may appoint a Guardian and/ or  Conservator when it is determined the ward lacks sufficient understanding to make or communicate responsible decisions concerning his or her care or finances.  Signs a Guardianship may be warranted are if the person is not taking his or her medications as directed or is not living in a healthy environment.  A Conservatorship may be needed if the person is making irrational decisions regarding his or her money, such as giving away money, property or assets for no intended purpose, isn’t paying their bills, is failing to budget or manage finances, or is spending money a substantial amount of his or her wealth for no clear reason.   In some cases, it may not be necessary to appoint both a Guardian and a Conservator.  For example, a Conservator is not necessary if the ward has a Durable Power of Attorney and a Guardian isn’t needed if the ward has a Health Care Power of Attorney.  Also, the South Carolina Adult Health Care Consent Act permits healthcare providers to obtain consent from someone other than the patient when (and only when) the patient is “unable to consent” and most often in emergency situations.  Neither Guardianships nor Conservatorships are, necessarily, permanent.  A ward may regain capacity, in which case the appointment(s) should be lifted or an appointed person can be replaced if they are not fulfilling the responsibilities.  Both the Guardian and Conservator will be relieved of their responsibilities upon the ward’s death and the Personal Representative of the ward’s estate will assume management of the financial affairs.  

WHO:  Priority to serve as Guardian and/ or Conservator (as well as under the Adult Healthcare Consent Act) is established by statute (see SC Code Sections 62-5-311 and 62-5-410).  Most often a spouse, parent, adult child, or sibling will be appointed.  It is not necessary for the same person to be appointed as both Guardian and Conservator.  In fact, in some cases, it may be appropriate for a private third-party to serve in one or both of these capacities.  

WHERE:  In South Carolina, Guardianships and Conservatorships are managed by the Probate Court which is deemed with the responsibility of appointing a person(s) or agency to make decisions on behalf of an individual who is not able to make his or her own medical, personal and financial decisions.  Guardianship and Conservatorship cases must be filed in the county where the alleged incapacitated person currently resides (is physically present).  

HOW:  The court will commonly require a report from two (2) medical providers regarding the person’s capacity.   Pursuant to S.C. Code Section 62-5-309 (Guardianships) and S.C. Code Section 62-5-405 (Conservatorships) those persons who must be personally served with notice of the proceeding include the alleged incapacitated person, as well as his or her spouse, parents, and adult children.  The court will appoint an attorney to serve as Guardian ad Litem (GAL) for the alleged incapacitated person during the legal proceeding.  It is the GAL’s responsibility to investigate the need for the Guardianship and/ or Conservatorship and ability/ appropriateness of the proposed person to be appointed.  

“Auto Accidents and the Law” – A Pamphlet and Information Form Every Driver Should Keep in the Glovebox

As a public service, the South Carolina Bar published a handy pamphlet to assist drivers involved in automobile accidents. It includes a brief form drivers should complete at the scene of the accident (or as soon as possible after receiving medical treatment). We suggest every driver in South Carolina keep a copy of this pamphlet in the glovebox. A free copy is available at: http://www.scbar.org/public/files/docs/AutoAccident.pdf

It may also be important for you to meet with an attorney soon after your accident. A personal injury attorney can:

-Assess and explain your legal rights;
-Help you understand the strengths and weaknesses of your claim;
-Negotiate with the insurance claims adjuster;
-File a lawsuit (if necessary) and represent you in court;
-Give you peace of mind that no stone will go unturned.

Be Warned: Facebook, Text Messages, E-mail, etc. Are All Fair Game

In the legal world it’s called Electronic Discovery (E-Discovery), in the “real world” it’s called spying or even “cyber-stalking” but regardless of the label, your cyber-presence can be used against you in court.  There are numerous examples of Facebook, text messages, e-mail, etc. being used as evidence of adultery, poor parenting, to refute an alibi, to demonstrate capacity to work, to prove substance abuse, and countless other things.

It would seem common sense that you shouldn’t change your status to “single” or “in an open relationship” if you’re married (and in South Carolina, you’re married until you’re divorced – PERIOD!) but common sense seems to be lost in cyberspace.   It’s important to note each of the antidotal examples below involves everyday people involved in everyday litigation.  The use of e-discovery is now common-place in the courts  – The Wall Street Journal reported in May 2012, “[m]ore than a third of divorce filings last year contained the word Facebook. . . .”  Thus, be warned:  Facebook, text messages, e-mail, etc. are all fair game!

1.  Deleted is not deleted and there’s no such thing as an anonymous post on the internet, no matter hows smart you think you are – forensic examiners WILL be able to find it. Last year, I was involved in a family court case, where the parties both alleged the other had made death threats and abused the child. The judge ordered all parties to turn over their computers, cell phones, and tablets to the South Carolina Law Enforcement Division (SLED) to determine the nature and content of e-mails and text messages sent between the parties. The judge also assured the parties they would soon have a lot more to worry about than their family court case – if any of the allegations were true, appropriate charges would be brought AND if none of the allegations were true, appropriate charges would also be brought for providing false information.  In another case, while on the stand testifying about  his Facebook posts, a Defendant said “I’ve been meaning to delete that account” – the judge didn’t appear amused and it certainly wouldn’t have helped his case (mind you, I already had printed copies of his page).

2.  If you claim to be injured (physically, emotionally, or financially) your Facebook page better not show otherwise.  In February 2013, LexisNexis reported on  a sexual harassment case brought by the Equal Employment Opportunity Commission (EEOC) against the Original HoneyBaked Ham Company of Georgia, Inc., the Defendant sought information from the women’s Facebook pages as evidence of their lack of credibility and to demonstrate their actual emotional and financial state at the time they claimed to be distressed. The Judge held “The fact that [the information] exists in cyberspace on an electronic devise is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation” and ordered the women’s Facebook accounts be examined by a forensic expert (paid for by the parties). Examples of the evidence sought included a photo of one of the women wearing a t-shirt imprinted with an offensive term to describe women, comments as to the women’s financial expectations from the suit, comments about unrelated traumatic events effecting their emotional state at the same time, and sexually explicit communication with the other women. EEOC v. The Original HoneyBaked Ham Company of Georgia, No. 11-cv-02560-MSK-MEH (D. Colo. Nov. 7, 2012).

3.  The past is not the past.  You should not post anything on Facebook (or say anything in a text message, e-mail, etc) that you don’t want broadcast from the highest mountain top now or ever.  A few years ago, I observed a civil court trial where the Plaintiff alleged he was no longer able to pursue his career as a musician because he allegedly suffered from a deviated septum resulting from a car accident.  At trial, the Defendant presented the Plaintiff’s own Facebook updates as evidence.  His posts showed a long history of sinus infections, nosebleeds, and medical treatment for symptoms of a deviated septum.  It definitely threw a wrench in the Plaintiff’s “but for” causation argument.  The case settled at lunch that day.

4.  Please do check in, and tagging everyone who’s with you is also helpful.  Thanks, Opposing Counsel.  I recently won a Family Court Rule to Show Cause in large part because the Defendant claimed he couldn’t afford to pay his obligations, all the while “checking in” at every stop on his four-city-tour of Florida.  It also didn’t hurt that he tagged his new girlfriend with him.

5.  Debit cards are equivalent to a personal diary.  For heaven’s sake, have enough sense not to buy flowers or lingerie online if you’re not giving it to your wife.

6.  Zip your lips (and your keyboard).  As reported in the July/ August 2012 edition of the Young Lawyer, technology “has transformed communications between lawyers and their clients and poses unique problems for preserving attorney-client privilege, [and] the work product doctrine . . . .”  It’s easy to inadvertently waive these privileges by disclosing confidential information to third parties.  In one case, Lenz v. Universal Music Corp., No. 5:07-03783, 2010 U.S. Dist. LEXIS 125874 (N.D. Cal. Nov. 17, 2011), a Plaintiff was found to have waived his attorney-client privilege by sending e-mails to third parties and blogging about conversations with his attorney.  Clients (and prospective clients) frequently get upset and even angry when their best friend, momma, daddy, or even their GF/BF is not permitted to sit in on meetings with their attorney.  There’s many good reasons for this policy, not the least of which is protecting attorney-client privilege.  Also, attorney’s should never, ever, communicate with a client regarding a case on Facebook or chat.

7.  Nothing is Secret on the Web.  Regardless of your privacy settings, password protection, or other means of securing your personal cyber world, it is always possible a judge will order you to turn it over, or even provide the opposing side your username and password.  Another take home lesson is friends are friends forever. You can “unfriend” your spouse but your friends have friends who have friends . . . I’ve never encountered a case where despite many degrees of separation, we weren’t able to access the other sides Facebook page.

8.  Keep your kids out of it!   Do Not, I repeat, DO NOT, post pictures or videos of your children with your new partner, in front of a bar, or with you on a dating website while you’re going through a custody case.  Also, keep in mind that if you post pictures of your new partner at an event and also post (separate) pictures of your children at the same event, it’s likely going to be easy to prove your children have been exposed to your paramour.

9.  Just because you can doesn’t mean you should.  In October 2012, a colleague, Benjamin Stevens, blogged about spying during divorce.  Mr. Stevens cautioned potential problems include criminal charges for invasion of privacy or stalking, or even civil suites such as trespassing.  He pointed to an example of a mother who was found guilty of violating the Federal Wiretap Act for placing a listening devise in her daughter’s teddy bear to record the girl’s father.  The law is dynamic and as suggested by Mr. Stevens, “it’s best to avoid any such stealthy operations” until you’ve consulted with an attorney.  Another colleague, Greg Foreman, also blogged in October 2012 about a South Carolina Supreme Court Case, Jennings v. Jennings, Opinion No. 27177 in which a husband sued his wife and her private investigator for invasion of privacy, conspiracy, and violations of the federal Stored Wire and Electronic Communications and Transactional Records Access Act (SCA), 18 U.S.C. § 2701.  Although, the Court’s decision was complicated, the take home lesson was certainly, it’s a bad idea to hack your spouse’s e-mail account; instead you should consult an attorney and go through proper discovery to obtain any such evidence.

Prenuptial Agreements: Do I need one and how do I know it will be enforceable?

Prenuptial Agreements (Also referred to as antenuptial agreements) were once thought to be for celebrities and the ultra wealthy (10 Biggest Celebrity Prenups).  Today, however, they are much more common.  Some are getting married for the second time and want to avoid another difficult divorce, and others simply look at the high rate of divorce as an ominous reality and want to protect their little nest egg (however small or large).  Because couples are marrying later in life, particularly those with a bachelor’s degree or higher, many want to protect the assets they’ve worked hard to acquire before saying “I do.”  The bottom line is “you don’t have to be a Rockefeller or Trump to need a premarital agreement.”

Bankrate.com suggests you should consider having a prenup if you:

  • Have assets such as a home, stock, or retirement funds;
  • Own all or part of a business;
  • May be receiving an inheritance;
  • Have children and/ or grandchildren from a previous marriage;
  • One of you is much wealthier than the other;
  • One of you will be supporting the other through college;
  • You have loved ones, such as elderly parents, who need to be taken care of;
  • You have or are pursuing a degree or license in a potentially lucrative profession (such as, law or medicine);
  • You could see a big increase in income because your business is taking off, or that garage band you play in has just gotten a contract with a big record company.

I would add to this list – if either of you has substantial debts.  A prenuptial agreement can protect your marital property from your spouse’s premarital creditors.

After you’ve decided that you need a prenup, you should tell your partner sooner than later.  Ideally, you should have an attorney draft your prenuptial agreement at least six months before the wedding.  This helps to close the door to any future claim of duress to invalidate the agreement.  While it may be possible to draw up and execute the agreement a few days before your wedding, it’s not smart.  It is in your best interest to provide the document to your partner at least 4 – 6 weeks before your wedding.  This will help ensure your agreement is enforceable.  If you’re planning to have a prenuptial agreement, a good rule of thumb is the Save the Date cards don’t go in the mail until you have met with your attorney, the agreement has been drafted, and presented to your partner.

The South Carolina Supreme Court has held that prenuptial agreements “will be enforced if made voluntarily and in good faith and if fair and equitable. . . .”  (see Hardee v. Hardee, 35 S.C. 382, 585 S.E.2d 501 (2003)).  The Court set forth three (3) elements to determine if a prenuptial agreement should be enforced:

  1. Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
  2. Is the agreement unconscionable?
  3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Id. at 389, 585 S.E.2d at 504 (internal quotations omitted).

In South Carolina, in order for your prenuptial agreement to be valid it must be in writing, executed voluntarily after full financial disclosure, and each party should be represented by counsel (or at least be given ample time to consult with an attorney).

The take home lessen is plan ahead, communicate openly with your partner about your finances, and consult with an attorney.